Biased Juries A Case For Supreme Court

May 3, 1985|By Craig Crawford

Do civil rights laws apply to the selection of juries? No, but the U.S. Supreme Court agreed last week to consider changing that, making it tougher for lawyers to get all-white juries when they want them.

To do this, the nation's highest court would have to reverse itself from a 1965 decision making it impossible to appeal a case because of racial discrimination in the selection of a jury. For the last 20 years, lawyers have been able to exclude from juries blacks and members of other minorities, with no questions asked.

Now the growing controversy about this has pushed the issue back to the Supreme Court, where there are several justices who did not participate in that earlier decision. The court has agreed to hear the appeal of a black man convicted of burglary by an all-white jury after the prosecutor excluded four potential black jurors.

How do lawyers exclude people from juries? The legal term for it is ''peremptory challenge.'' In a tradition that goes back to English common law, each side in a trial gets a set number of peremptory challenges. And there is no more sacred rule of trial law than the one that allows lawyers to use these challenges without giving any reason for doing it, meaning they can throw out a potential juror for any reason at all.

There is another way of excluding jurors, called ''challenge for cause.'' There is no limit on the number of challenges for this reason, but for the challenge to be used, the juror must have demonstrated some bias in the case, such as knowing one of the parties or their lawyers. Race is not a factor in challenges for cause, unless the juror admits a racial prejudice that would affect the case.

Most trial lawyers will tell you that jury selection is the most crucial part of a trial. It's the time when the lawyers make their first impression on the jury and the only time they ask them questions.

The process of challenging jurors is kept secret from the jury. After they have questioned the potential jurors, the lawyers talk privately with the judge and tell him which people they want excluded. This way, neither side can be blamed by the jury for excluding someone. Of course, it should be obvious that if a defendant or plaintiff is black and every black person is excluded from the jury, chances are that the opposing lawyer is responsible.

It is very easy for lawyers to get all-white juries in Central Florida because the number of blacks registered to vote is so low. Juries are picked from the list of registered voters, meaning that if only 10 percent of a county's voters are black, then no more than two or three potential jurors are likely to be black. In most cases, lawyers have more than enough peremptory challenges to exclude blacks, and it happens routinely.

The interpretation of two amendments to the U.S. Constitution could change all this. One is the 14th Amendment, known as the equal-protection clause. It says that all Americans are entitled to equal protection of our laws. When a law favors one class of people over another, it can be found unconstitutional under this amendment. The other is the Sixth Amendment, which guarantees the right to trial by an impartial jury.

Constitutional scholars and many trial lawyers have been arguing for years that the Supreme Court was simply wrong when it did not apply these amendments to the issue of racial discrimination in jury selection. And many believe that the court's agreement to reconsider the question is an indication that there will be a change.

If the court does outlaw racial discrimination in jury selection, the tough question that probably will not be addressed is how to enforce it. The justices usually leave such nitty-gritty matters to the lower courts.